Governor Hochul’s Veto of Montaukett Nation “Reinstatement”: 'Christian Discovery’ Hiding in Plain Sight
Media fixation on racism obscures the fundamental domination of US Anti-Indian Law….
IN THIS POST: Criticism of Governor Hochul’s denial of Montaukett land rights as an act of racism obscures the fundamental US doctrine claiming a right of domination over Indigenous peoples. It thus plays into the hands of anti-Indigenous assimilationists. The rhetoric of racism takes a strange turn in the history of Indigenous peoples.
On November 17, 2023, New York Governor Kathy Hochul vetoed a legislative bill that would have “reinstate[ed] state recognition and acknowledgement of the Montaukett Indian Nation“.
Hochul said there was not “sufficient evidence” to overturn a 1910 state court ruling that the Montaukett “no longer functioned as a governmental unit”. She said the Montaukett should try again, with new evidence… for the sixth time! 🤯
Media criticism erupted at Hochul’s alleged racism.
The New York Times was typical:
The Montauketts lost their designation after two court decisions rife with racist reasoning. In 1910, …Judge Abel Blackmar sided with a wealthy white family in a yearslong land dispute and declared the tribe extinct — or “disintegrated” as he put it — and wrote off its members as “shiftless” people who served whites and mixed with other races.
The Times added:
A state appeals court upheld the decision two years later, with Justice Joseph Burr ruling that the Montauketts were “impaired by miscegenation, particularly with the Negro race.”
Other commentators, including even legislators supporting the bill and Montaukett officials, also focused on racism.
Assemblyman Fred Thiele, Long Island Democrat, was quoted as saying it was “outrageous” for Governor Hochul to cite “one of the most racist decisions” in New York’s jurisprudence as the basis for her veto.
Executive director of the Montaukett, Sandi Brewster-walker, was quoted as saying the governor had “endorsed extremely racist” court rulings from the early 1900s.
‘CHRISTIAN DISCOVERY’ — HIDING IN PLAIN SIGHT
I have no doubt that racism befouled the 100-year old Montaukett court decisions. The judges’ writings speak for themselves.
But the focus on ‘racism’ obscures the actual basis of the court rulings—the doctrine of ‘Christian Discovery’.
‘Christian discovery’ underpins the entire edifice of US laws regarding Indigenous nations. It is a doctrine wielded by racist and non-racist judges alike.
‘Christian Discovery’ doctrine is easy to see in the decisions. It was missed because of the fixation on racism as the single explanation for everything unjust in today’s society and in US history.
US Supreme Court Chief Justice John Marshall brought the colonial doctrine of ‘Christian Discovery’ into US law in 1823 in Johnson v. McIntosh:
The English government…acquire[d] territory on this continent…[under] the …right of discovery [of] countries ‘then unknown to all Christian people’…
[This is] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.” [emphasis in original]
“The United States…have unequivocally acceded to that great and broad rule…”
Justice Joseph Story, a member of the court, stated the doctrine even more bluntly in 1833:
“…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.
The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”
These blatant claims of a right of domination have never been overturned. It’s not like ‘separate but equal’ that was overturned in 1954 in Brown v. Board of Education. In fact, the claims were reinforced in 1955 in Tee-Hit-Ton v. US!
The domination claims are not a ‘liberal v. conservative’ thing either.
With this in mind, let’s look at the NY cases that were the focus of criticism.
The first ruling, Pharoah v. Benson (Supreme Court, Suffolk County, New York, Equity Term, 1910) focused on a controversy about ownership of “the land now known as Montauk Point”.
The first thing the ruling did—well before the judge penned his racist characterizations of the Montaukett—was to examine the status of Montaukett Nation lands in 1660, at the outset of their dealings with “the whites”.
The judge said:
The fee of the land was in the crown of England, subject to the Indian right of occupation.
“Fee of the land” is an old-fashioned way of saying “title” to the land, “ownership” of the land.
In other words, the judge said the Montaukett did not own their lands! England did.
‘Christian Discovery’ jumps off the page. It’s unmistakable. Re-read Marshall and Story.
The judge dived right into ‘Christian Discovery’ doctrine, though without using that label:
Indian rights… are simply Indian rights of occupancy. These rights grew out of the claim by the whites to the proprietorship of the soil which rested in discovery and the impossibility of treating the Indians as trespassers. …
The sovereign claimed to own the soil…. So arose the rule that no one could purchase of the Indians without the sovereign's consent, and this rule made the Indians the wards of the state.
The judge then invoked a collateral ‘Christian Discovery’ claim—that the colonizers have power not only over Native land but over Native peoples; Colonizer law claims the power to decide whether Native peoples exist or not!:
In the absence of legislative permission to bring an action, the tribe had no standing in court…. The Indians had no statutory right to sue. [But] the Legislature … passed an enabling act permitting an action to be brought…[on] the question of the existence of the Montauk Tribe….
The judge closed his ruling with an answer to the question of Montaukett existence:
There is no consideration of justice which makes me loath to find that there is no longer a tribe of Montauk Indians.
Read in context, the racist language in the ruling turns out to be the judge’s explanation why he is not “loath” to define the Montaukett out of existence.
But the real issue is the state’s claim of power to decide the question of Montaukett existence in the first place.
Readers who fail to understand the role of ‘Christian Discovery’ will miss one particularly ironic passage in the ruling; it’s about “property rights”:
The judge said:
There are certain fundamental principles…. Among these is the right of property. These rights cannot be transferred from one person to another nor seized by the state without compensation.
What about Indigenous property?? It was ’seized’— defined out of existence— by ‘Christian Discovery’. And that set the stage to define Indigenous peoples out of existence.
The 1914 appellate decision that affirmed this ruling, Pharoah v. Benson (Supreme Court, Appellate Division, Second Department, New York, 1914), stands in a line of NY and US cases affirming the colonizer claim of a right of domination over Indigenous nations, lands, and peoples:
The laws of this state do not recognize the different tribes of indians, within our bounds, as independent nations, but as citizens merely, owing allegiance to the state government; subject to its laws, and entitled to its protection as such citizens. …The indians cannot therefore institute a suit in the name of the tribe….
The nature of the Indian title to lands on this continent was established by the… principle [of] discovery… the claim that the sovereign had the ultimate title to the soil… These general principles were announced by Chief Justice Marshall in the great case of Johnson v. McIntosh,…which has ever since been regarded as a sound exposition of the nature of Indian titles.
…This was the beginning of the … territorial possessions of the government of the United States….
The ultimate fee of [Indian] reservations is vested in the state, or in its grantees, subject to [a] right of use and occupancy by the Indians…. see Johnson v. McIntosh….
It is not worth while to enter upon any discussion of the status of the Indian tribes within this state, as we think that on the question now before us we are concluded by authority.
The policy and practice which have been long established in our treatment of the Indian tribes [is that] they are regarded as the wards of the state, and, generally speaking, possessed of only such rights to appear and litigate in courts of justice as are conferred upon them by statute.
‘Christian Discovery’ is still the core of US anti-Indian law.
Two quick examples:
Indian title is not a source of title. It has been characterized purely as a right of occupancy subject to the superior and ultimate fee title of the sovereign. [citing] Seneca Nation v. Christie.
As was stated by the Supreme Court of the United States in the cases of Johnson v. McIntosh… and Martin v. Waddell…: “The Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the nation by which any particular portion of the country was first discovered.
“Whatever forbearance may have been sometimes practiced toward the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.”
🤯 1961!
City of Sherrill v. Oneida Indian Nation (US Supreme Court, 2005), penned by Justice Ruth Bader Ginsburg, whom no one to my knowledge ever accused of racism:
Under the “doctrine of discovery,” fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.
🤯 2005! Ginsburg!!
The hoopla about Hochul’s alleged racism failed to get near the claim of a right of domination that needs to be critiqued, whether Hochul is racist or not.
In July 2023, I wrote about the dangers of a racism critique of US anti-Indigenous law in relation to “landback” movements.
The same issues are at stake for the Montaukett.
The first cited use of the term “racism” in the Oxford English Dictionary points to a speech made by Richard Henry Pratt, founder of the infamous Carlisle Indian Industrial ‘School’ for Indigenous children forcibly taken from their homes. Pratt used the term in a speech at the 1902 Lake Mohonk Conference of Friends of the Indian.
Pratt said his Carlisle School combated the “racism” of federal policy, which allowed Indigenous nations to exist apart from American society. Pratt’s program was to break the transmission of Indigenous languages and traditions, to incapacitate Indigenous cultures and political structures through a multi-generational process. He called this an ‘anti-racism’ project!
The project aimed to “solve the Indian problem” with a ‘racial equality’ approach that undermined Indigenous independence.
Steven Curry put it this way in 2006:
“The racializing of communal identity [i.e., applying race theory to Indigenous nations] has been used as a policy designed to destroy Indigenous communities.”
Despite the obvious racism in federal anti-Indian law, a critique relying on race theory runs the risk of supporting anti-Indigenous assimilation agendas. Arguments that occur within a racism framework undermine Indigenous freedom.
The 1924 Indian Citizenship Act, for example, is often described as a ‘pro-Indian’ law, as in this headline: “Native Americans won U.S. citizenship in 1924”. In fact, the Citizenship Act was part and parcel of the US program to assimilate ‘Indians’ as individuals into American society and pave the way for ‘termination’ of Indigenous peoples as separate political entities. Citizenship was imposed on ‘Indians’ to pave the way for their ‘termination’ as peoples.
The late Yankton / Standing Rock attorney and theologian Vine Deloria, Jr., explained it this way in 1974 in Behind the Trail of Broken Treaties:
“Few people [in America] were able to . . . recognize that if the United States and its inhabitants . . . regarded the Indians as another domestic minority group, the Indians did not see themselves as such.”
The legislators who wrote the “reinstatement” bill knew about ‘Christian Discovery’, but they didn’t know what to do about it.
The bill text said:
Evidence demonstrates that the Montaukett Indian Nation existed prior to the Doctrine of Discovery….
The bill did not challenge the doctrine. In fact, it relied on it:
U.S. Supreme Court decisions … giv[e] Congress, rather than the courts, power to decide the status of an Indian.
This says that ‘Christian Discovery’ domination is for Congress and not New York, as if that somehow would take away the domination.
Racism vs. Eracism comes to mind.
Since you mention him again, i searched and found an interesting bit of history of books trivia: "Justice Story was one of the most successful American authors of the first half of the 19th century. "By the time he turned 65, on September 18, 1844, he earned $10,000 a year from his book royalties. At this point, his salary as Associate Justice was $4,500." (Wikipedia citation - "Rotunda & Nowak "Introduction" to Story's Commentaries on the Constitution of the United States...")